Monday, April 23, 2012

Supreme Court decides Mohamad v. Rajoub: no cause of action against corporations under Torture Victim Protection Act

As you probably know by now, I have been following the developments in the two cases before the US Supreme Court on whether plaintiffs have a right to recover from corporations under the Alien Tort Statute (Kiobel v Royal Dutch Petroleum) and the Torture Victim Protection Act (Mohamad v Rajoub).  For more details, go here and scroll down to see multiple posts on the subject.

In  Kiobel v Royal Dutch Petroleum the Court of Appeals for the Second Circuit held for the first time that corporations can't be sued under the Alien Tort Statute.  Likewise, in Mohamad v. Rajoub, the DC Circuit Court held that corporations could not be liable under the TVPA (even though in a different case it held they can be sued under the ATS).

Although some courts have agreed with Rajoub, other Circuit Courts have rejected Kiobel's reasoning and it remains the only case to have decided the issue in favor of the corporate defendants (under the ATS).  Here is a list of the relevant cases and how they were decided.

Last week, the Court announced its decision in Rajoub (under the name Mohamad v. Palestinian Authority) holding that plaintiffs do not have the right to sue corporations or other entities under the statute.  The opinion is available here. All other relevant documents in the case are available here.  The oral argument is available here.

Here is a list of comments on the case, courtesy of the SCotUS blog:

For the SCotUS blog, Lyle Denniston reports that the ruling “almost certainly means there will be few cases in U.S. courts seeking damages for acts of torture overseas.” Other coverage of the opinion comes from Greg Stohr of Bloomberg, Nina Totenberg of NPR, Mark Sherman of the Associated Press, James Vicini of Reuters, Adam Liptak of the New York Times, Robert Barnes of the Washington Post, David G. Savage of the Los Angeles Times, Warren Richey of the Christian Science Monitor, Barbara Leonard of Courthouse News, Mike Sacks of the Huffington Post, Jess Bravin of the Wall Street Journal Law Blog and the Wall Street Journal (subscription required), and Debra Cassens Weiss of the ABA Journal.  At the Wall Street Journal Law Blog, Jess Bravin also notes that the opinion incorrectly referred to the respondent, the Palestine Liberation Organization, as the “Palestinian” Liberation Organization.

In addition, there are comments in the Wall Street Journal law blog, and today's opinion analysis at the SCotUS blog here and here.

Should pet owner be awarded non economic damages for death of pet? Court in Colorado says yes.

I have argued before that I really don't see why owners should not have the right to try to claim personal/emotional injuries due to the deaths or injuries to their pets. See here. However, although there may be a few cases out there that have recognized these types of claims, courts have traditionally held that animals are "chattels" and that there is no cause of action for emotional distress, loss of companionship and the like when they are injured by others. Usually, if a cause of action is recognized, the injuries are valued based on the "market value" of the animal or for injuries based on intentional conduct by the defendant.  Rarely do you see claims allowing for non economic damages in cases based on negligence.

A recent case in Colorado has now brought the issue back to the forefront.  In this case, the plaintiff will receive $65,000 from the defendant for the death of her dog after the defendant negligently let the dog out of the house and the dog was hit by a car. 

For more on the story go here and here.

Friday, April 20, 2012

HR 5 bill limiting patients' rights approved by the House -- UPDATED

Day on Torts is reporting that the House of Representatives has passed HR 5 by a vote of 223-181.   Ten Republicans voted against the legislation, and 7 Democrats crossed over to support the Republicans.  Four Republicans voted "present."  As I have discussed many times before (see here)  the bill attempts to limit the right of victims of medical malpractice to recover for their injuries by making it difficult for them to find representation and by limiting their possible recovery. It also provides protection to pharmaceutical and medical devices companies in cases of injuries caused by defective products.

UPDATE April 13:  AboutLawsuits has a comment here.

UPDATE April 20:  The Blog of the Legal Times has more on the story (and some interesting comments) here.

Proposed federal legislation in response to Pliva v Mensing would allow litigation against generic drug manufacturers - UPDATED

Democrats in the Senate and House introduced companion bills Wednesday that would permit generic drug companies to update warning information about the drugs they manufacture, a change that could allow patients to sue the companies for failing to warn about the risks of taking their drugs.  The New York Times has the details here.

UPDATE:  4/20/12:  the FDA law blog has more on this story here.

Wednesday, April 18, 2012

Comment on "apology and early settlement offer" program in Massachussets

The PopTort is reporting today on a new medical malpractice “apology and settlement offer” program set to begin at seven Massachusetts hospitals which would allow hospitals to encourage victims of malpractice to accept an apology and compensation in exchange for a release of liability.  The proposal can be beneficial to eliminate costly and time consuming litigation but it could also result in very unfair results for the victims.  You can read the full comment here

Comment on early settlement offer proposal

About two weeks ago I reported that the New Hampshire Senate has adopted an early offer approach to medical malpractice that would allow a patient to initiate the early offer process.  See here

My friend Professor Chris Robinette (Widener School of Law) has now published a short response to the most common arguments against early offer programs here.

He does a good job explaining the issues and argues that programs like this one work to offer an alternative to litigants who would prefer a faster way to resolve their disputes even though they might get a higher recovery if they choose to litigate.   As I said in my original post, I like the fact that the proposal is not mandatory - if it were I would be completely opposed to it.  However, I am not sure how effective the proposal will be because the caps it sets on damages seem (at least to me) to be too low.

Monday, April 16, 2012

Clifford symposium on tort law and policy

Every year, De Paul law school hosts a symposium on tort law and policy.  The topic and speakers change but the quality is always excellent.  I have attended almost every year and have always enjoyed it.  The details of this year's program are now available here.  It is scheduled for April 26 and 27.

Thursday, April 12, 2012

Tennessee Senate rejects tort reform bill

Day on Torts is reporting that the Tennessee Senate Judiciary Committee has voted to reject a tort reform bill that would have eliminated liability for punitive damages for employers for conduct of their employees (with a few exceptions).

Wednesday, April 11, 2012

Arizona senate approves law barring wrongful birth/wrongful life and wrongful conceptions claims

About two months ago I reported that that lawmakers in Arizona were considering a ban on “wrongful birth” lawsuits.  Now comes news that the state senate has approved the law.  Jonathan Turley has a comment here.

The issue raised by this topic is complicated because there are different types of claims, some of which are justified and some of which are not.

First, the terms wrongful birth and wrongful life are most often used to refer to claims based on the allegation that the defendant (usually a doctor) was negligent and did not alert the parents of a child of the possibility of genetic defects, birth defects or abnormalities in the development of a fetus, thus depriving the parents of the chance to decide to terminate the pregnancy.  Thus, the conduct of the doctor resulted in a "life" that could have been avoided.  The "injury" caused by the doctor is "life itself."

There are differences of opinion as to whether these claims should be rejected, but there was no need to adopt a law to do so.  To my knowledge, courts have consistently rejected general wrongful birth/life claims as against public policy, among other reasons, because life, no matter how difficult, should not be considered to be an "injury" and because even if it could, it is too difficult to assess the value of the alleged injury because it is impossible to assess the value of the alternative (non-life).

The problem with the Arizona bill is that in trying to eliminate those claims, it also eliminates other claims which are justified.  

For example, some courts have recognized a cause of action for out of pocket expenses related to the pregnancy and child birth that would have been avoided had the defendant not been negligent.  These cases are justified and should be allowed to proceed.  The negligent conduct of the defendants does cause the need for these expenses and there is no valid reason to immunize the defendants from liability for them.

Somewhat more controversial are the cases that have recognized claims for the expenses needed to take care of a child born with birth defects at least until the age of majority.   You can make the argument that these claims are not justified, and should be banned, because they allow a plaintiff to recover for an injury that was not actually caused by the defendant.  The defendant's conduct resulted in the birth of the child, not in the birth defect.  But you can also argue the causing the birth of a child with defects means causing the expenses that could have been avoided. 

Finally, the Arizona bill is so vaguely worded that it would also bar claims for wrongful conception even though these claims do not seem to be the types of claims originally considered by the drafters of the bill.  These are cases where the defendant is negligent in performing a procedure to prevent future pregnancies.  When parents decide not to terminate undesired pregnancies they should have the right to recover for the added expenses caused by the negligence of the doctors which should certainly include the costs of the pregnancy and child birth and, you could argue should also include the costs of raising the child to the age of majority.  These claims are purely financial and their value can be calculated relatively easily. More importantly, the injury is clearly caused by the negligence of the doctor.

There is no valid reason to provide negligent doctors with immunity from these claims, which is exactly what the Arizona bill does.  The bill eliminates the right of a plaintiff to recover for damages when they are clearly caused by the negligence of the defendant.

Tuesday, April 10, 2012

Update on the litigation related to the new regulations on cigarette warnings

Next Tuesday, the federal appeals court in Washington will hear arguments on two related rulings by a Federal District Court judge, Richard Leon, blocking implementation of the new labeling plan. As reported by the Newy York Times, Judge Leon concluded that the government’s prominent use of emotionally charged images “calculated to provoke the viewer to quit” smoking crossed a line. They went from conveying uncontroversial factual information, he said, to compelling tobacco firms to advance the government’s “obvious anti-smoking agenda” in violation of their free speech rights.

The New York Times has published an article criticizing the lower court's opinion and arguing for its reversal.  It starts by stating that "[t]he tobacco industry has never been bashful about fighting back against attempts to regulate the promotion of its deadly, addictive products. The latest is an effort to derail new regulations requiring large health warnings on cigarette packages by making baseless First Amendment claims"  It ends by arguing that reversing the lower courts ruling "should be an easy call."

The Blog of the Legal Times has more on the story.  For all my previous posts on this subject go here (where the posts are in reverse chronological order.)

Friday, April 6, 2012

New Hampshire considers "early offer" program in medical malpractice cases

The TortsProf blog is reporting that the New Hampshire Senate has adopted an early offer approach to medical malpractice that would allow a patient to initiate the early offer process.

According to an article in the Union Leader,  Senate Bill 406 establishes an “early offer” program in which a medical provider would have to offer a settlement to an aggrieved patient within 90 days. The settlement would be based on medical costs and lost wages, while limiting pain-and-suffering damages, from $1,700 for minor harm to $117,500 for grave harm. Participation in the program would be voluntary for patients.

The fact that the program is voluntary is a good thing, but given the incredibly low caps on damages it would seem its utility would be very limited.

Aside from that, as with all early offer programs, another main problem is that the program is basically unfair to the plaintiffs in one basic respect.  For the defendant to be able to make a reasonable offer, the plaintiff has to provide the defendant with all the available information before the defendant has to offer any in return.  In other words, the system is flawed in that it depends on the plaintiff disclosing all its evidence before getting the benefit of doing discovery.  It is this one sided discovery function that have resulted in similar proposals to be abandoned in other jurisdictions in the past.

Of course, as you would expect, the rhetoric is always the same and the attack on the plaintiffs' bar is vicious.  Take a look at the comments under the Union Leader article for example.  Unfortunately, many of those comments are misinformed as I have documented many times over the last two years here.

Defendants' group cries foul

Defendants' groups and lawyers (especially in medical malpractice cases) love to lobby for the imposition of measures that operate as barriers to plaintiffs' attempts to recover for their injuries - like certificates of merit or early offer requirements.  But when something is proposed to impose new requirements on them, they cry foul!

This was the case recently in Illinois when the Cook County Circuit Court Law Division designed a pilot program that forces defendants to disclose trial experts at the same time as plaintiffs.  Saying no issue “so galvanized” its members, the state’s largest defense bar group protested and called for the program to be dropped.  Go here for more on this story.

Thursday, April 5, 2012

New article on tort reform

The Pop Tort has posted (here) a summary of a new article called "The empirical effects of tort reform,” written by Cornell Law School Professor Theodore Eisenberg.  The article is available here.

Summary of the law regarding claims against manufacturers of generic drugs

Continuing our coverage of the developments in the area of claims against manufacturers of generic drugs, here is a link to a helpful summary of the state of the law by the Drug and Device blog.

Wednesday, April 4, 2012

Several states consider constitutionality of damages caps

Last week, the Missouri Supreme Court heard arguments on whether that state's 2005 cap on non-economic damages in medical malpractice cases violates the state constitution.  The Springfield News-Leader has the details.

Meanwhile, at about the same time, a federal judge ruled that Texas's cap on non-economic damages in medical malpractice cases is not an unconstitutional taking of private property.  For more information go here and here.

Likewise, as reported here, that the Louisiana Supreme Court upheld statutory limits on medical liability damages awarded by juries.

(Thanks to the TortsProf blog for some of these links).

Judge Awards $77M in Back-to-Back Rulings Against Iran for 1983 Bombing

Last week, U.S. District Chief Judge Royce Lamberth issued a $44.6 million judgment against the Iranian government for its role in the 1983 terrorist bombings at the U.S. Marine barracks in Beirut, Lebanon. The ruling came a week after Lamberth issued a $33.3 million judgment against Iran in a similar case.  Go here for more information and links to the decisions.

Decisions on the constitutionality of the cigarette warnings regulations might be headed to Supreme Court

A few days ago I reported on two recent decisions on the constitutionality of the regulations that require cigarette manufacturers to place graphic images as part of the required warnings in cigarette packages.  (see here and here).  Circuit Splits is reporting today that the issue might be headed to the Supreme Court soon.  Go here for the article.

Tuesday, April 3, 2012

Another NYT article about generic drug cases

Here is a link to another article/editorial in the New York Times criticizing the effects of the Supreme Court's decision in Pliva v. Mensing.  It starts by saying "[d]ozens of suits against drug companies have been dismissed in federal and state courts because of a decision by the Supreme Court last year that makes it virtually impossible to sue generic manufacturers for failing to provide adequate warning of a prescription drug’s dangers. This outrageous denial of a patient’s right to recover fair damages makes it imperative that Congress or the Food and Drug Administration fashion a remedy"  You can read the full article here.